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2d 732
concerned. It appears that this issue of the actuality of the controversy between
the parties was sharply contested in the court below, and that court, after careful
consideration, expressed itself as "satisfied that in this case an `actual
controversy' exists." So are we. The point being jurisdictional, however, we
think we should notice it despite the fact that it has not been pressed on this
appeal.
4
The facts with respect to the genesis of the dispute to be gleaned from the
pleadings and from the affidavits in support of the cross motions for summary
judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.,1 are
these:
The Corporation on behalf of which this suit was brought, National Fitch, and
the defendant National Car Company, entered into a contract on March 1, 1940,
with respect to the prosecution of the business of manufacturing and renting
apparatus for use in combined railroad and truck transportation of goods,
apparently liquid goods in bulk, typically milk. For the next seven years there
was apparently no dispute between them over its meaning. But on March 5,
1947, the board of six directors of the corporation on whose behalf this suit was
brought, National Fitch, failed by a tie vote to pass a motion made by one of
them for arbitration with the defendant National Car as provided in the contract
with respect to the meaning of certain of its terms. Then, in May 1947, a
representative of the plaintiff called upon counsel for National Car and
advanced, and attempted to support, certain contentions with respect to the
meaning of the contract at variance with the practical construction of those
terms by the parties to the contract over the preceding years. His contentions
were summarily rejected, and this suit followed some eight months later.
The merits, however, were fully considered by the court below, and we see no
reason to canvass them again, for should we do so, it would only be to
paraphrase the opinion already written in the case. It will suffice to say that
after consideration of the briefs and oral arguments we are not disposed to add
anything to, or to elaborate upon, the opinion of the District Judge.
The judgment of the District Court will be affirmed with costs in this court to
the appellees.
Notes:
1
The court below denied the plaintiff's motion and granted the defendants' with
costs, and this appeal is from the order entered in accordance with that action